CA upholds finding that Uber drivers are workers
Thursday 3rd January 2019
The CA has upheld the EAT’s finding that Uber’s drivers have worker status and are therefore entitled to various employment rights, including the national minimum wage, 5.6 weeks of paid holiday and the protection of whistleblowing legislation.
Mr Aslam and Mr Farrar were selected as test cases for a preliminary hearing before the ET, which examined their employment status. The ET decided that the definition of worker under the ERA 1996 was met, with particular focus on the amount of control Uber exercised over how the drivers operated.
In the ET’s view any driver who (a) has the Uber app switched on, (b) is within the territory in which he or she is authorised to work, and (c) is able and willing to accept assignments is (for so long as those conditions are satisfied) working for Uber under a “worker” contract.
Uber appealed to the EAT, arguing that the ET had failed to properly take into account a driver’s ability to refuse or cancel trips or even work for others. Uber argued that it was an agent providing only a technology platform through which drivers can provide transport services to passengers on a self-employed basis, but that Uber itself was not a transport provider. The EAT dismissed the appeal, holding that the ET was after having examined all relevant factors “entitled to reject the label of agency and the characterisation of the relationship in the written documentation”. Uber appealed.
In a majority decision, the CA agreed with the ET that Uber is a transportation business and “drivers provide the skilled labour through which that business delivers its services and earns its profits”. The CA considered there to be a “high degree of fiction” in the wording of the contractual documentation. Practical reality was not reflected in the documentation, described by the CA as “convoluted, complex and artificial” and precedent set by the SC entitled the ET to disregard it.
The CA considered that the ET was not only entitled but was correct, given the operational realities and Uber’s public marketing statements, to conclude that Uber drivers were workers personally performing services for Uber and that Uber was not a client or customer of any profession or business undertaking carried on by the individual driver. Further, for the purposes of working time, the CA agreed that an Uber driver is to be considered as “working” where conditions (a), (b) and (c) outlined above are satisfied.
Uber was granted leave to appeal to the Supreme Court.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.